a mechanism, like a breathalyzer, installed on a motor vehicle’s dashboard. Before the vehicle’s motor can be started, the driver first must exhale into the device; if the resultant breath-alcohol concentration analyzed result is greater than the programmed blood alcohol concentration, the device prevents the engine from being started.

Once the vehicle has started, the device is going to randomly require additional samples to prevent someone other than the driver from blowing into the machine. If the driver fails to provide a sample, or the sample shows an impermissible alcohol concentration, the machine will log the event and then set off an alarm until the vehicle is turned off or a clean breath sample is provided.

Under Montana law, an IID can be required because of different situations. The newly created sentencing statute for Aggravated DUI specifically contemplates use of the machine as a part of a suspended sentence. But don’t think that these are only limited to aggravated charges.

Under Section 61-8-442, an IID may be required on a conviction for DUI

or DUI per se. In the case of a person’s first conviction it is left to the Court’s discretion to decide whether or not to require the interlock device. In my experience, it is rarely required for first time offenders not charged with Aggravated DUI. However, because extreme situations exist this is left to the judge’s discretion. However, when facing a second or subsequent conviction for DUI, the court must either require the IID for any period of a probationary license, require the person to participate in the 24/7 program, or order that each vehicle owned by the person be seized and forfeited.

Interlock devices are inconvenient, but better than not being allowed to drive. For most of my clients, the more pressing concern is the cost and the invasive nature of the device.

Mark Haldane was convicted of driving under the influence of alcohol (DUI) at the conclusion of a jury trial in Bozeman Municipal Court. He appealed to the District Court for Gallatin County, which affirmed the trial court’s denial of his motion to suppress. Haldane then appealed to the Montana Supreme Court arguing that: 1) when he was stopped based on an obstruction to his temporary registration permit by snow and a trailer hitch, it was a violation of his constitutional right to be free from unreasonable seizure; 2) his trial counsel rendered ineffective assistance; and 3) his sentence violated due process because it was based on his indigency.

In Montana, officers may initiate a traffic stop on any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. Section 61-3-301(1)(a), MCA, provides that “a person may not operate a motor vehicle … upon the public highways of Montana unless the motor vehicle … is properly registered and has the proper license plates conspicuously displayed on the motor vehicle.” Furthermore, § 61–3–301(1)(a), MCA, requires that the “license plate must be securely fastened to prevent it from swinging and may not be obstructed from plain view.” The statute defines “conspicuously displayed” as “obviously visible and firmly attached.”

Haldane argued that Montana’s weather and the prevalence of farm and other towing vehicles make it unlawful for law enforcement officers to effectuate a stop only because a temporary registration is obscured by snow and a ball hitch. He relied on concurrences by Justice Nelson in State v. Rutherford, 2009 MT 154, and State v. Cooper, 2010 MT 11. As Justice Nelson wrote in Cooper:

I continue to disagree with the proposition that, in this state, a license plate’s being obscured by the natural accumulation of the elements or driving conditions can constitute particularized suspicion for anything—except that Montanans often drive in foul weather and on foul roads.

However, the Supreme Court in this case rejected this analysis. Instead, it focused on case law establishing that a statutory violation alone is sufficient to establish particularized suspicion for an officer to make a traffic stop. And, the plain language of 61-3-301, MCA, requires that a license plate may not be obstructed from plain view and must be obviously visible. Under Montana law, a license plate obstructed by snow or a ball hitch is legally sufficient justification to authorize a traffic stop.

Haldane also argued that his sentence violated his due process rights because it was based on indigency. The State maintained that this argument had been waived because it wasn’t raised at the original sentencing, however the MT Supreme Court invoked the Lenihan exception which provides that an appellate court may review any sentence imposed in a criminal case if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.

In this case, the Court originally planned to sentence Haldane to six months with all but three days suspended. However, after it was revealed that Haldane was indigent and unable to make his payments, the Court increased his sentence to one year with all but three days suspended. Because his sentence was increased to the maximum sentence based on his inability to pay the fines and fees, it was a violation of due process.

In Montana, a person’s first, second, and third conviction for DUI are misdemeanor offenses. This means that your case will generally be held in Justice Court. In Flathead County, the Justice Court is located on the second floor of the Justice Center.

The fourth and subsequent convictions are felonies, meaning that they must be heard in District Court, and not in Justice in Court. Justice Court is a County Court, with jurisdiction over whatever happens in the County. That means that if you are arrested for DUI in Kalispell, Whitefish, Columbia Falls, or Bigfork – you may end up in Flathead County Justice Court.

Make no mistake, Justice Court is a very real court with very real judges who can sentence you to very real jail time. Some people have the mistaken impression that Justices of the Peace only marry people. But as many DUI offenders in Flathead County can attest, a Justice of the Peace can also sentence offenders to jail time. As we’ve discussed before, even a first offense for DUI can carry up to six months in prison. That is why it is so important you protect yourself when accused of DUI in Flathead County. If you, or someone you know, has been charged with Drunk Driving, please call me today for a free consultation.

A plea agreement is a compromise between the prosecution and the defense. It typically involves the defendant pleading guilty to some charge (often a less serious one than that originally charged), in exchange for other charges being dropped and often a recommendation from the prosecutor regarding sentencing. For example, a defendant charged with DUI and an open container violation might plead guilty to reckless driving in exchange for having the DUI and open container charges dropped. This is just an example of a possible outcome.

In order to enter into a plea agreement, the defendant must be advised that 1) the Court is not bound by plea agreements; 2) if the Court rejects a plea agreement which calls for a specific recommendation jointly made by the prosecution and defense, the Court shall inform the parties, afford the defendant an opportunity to withdraw the plea, and advise the defendant that if the defendant persists in the guilty plea, the disposition of the case may be less favorable than the plea agreement.

However, if the plea bargain does not involve a recommendation by the prosecution (and only an agreement that the prosecutor will not oppose the defendant’s recommendation) – the Court does not have to allow the defendant to withdraw from a guilty plea.

You may have heard the adage that an oral contract is worth the paper that it is printed on, but in Montana – an oral plea bargain is binding. This can be helpful to those charged with DUI when the prosecutor makes an offer he later regrets. But it can be a problem when the defendant regrets his decision later. So remember, always think carefully and consult an attorney before entering into any sort of plea bargaining for Montana DUI.

A new specialty court designed to intervene with repeat drunken driving offenders will open in Butte on October 1st. Currently the Court has funding to stay open for the next three years based on a Department of Justice grant.

The DUI court is designed for people convicted of two or three misdemeanor DUIs and who are at high risk to re-offend. The court may also select young drivers with one DUI, but who had a high blood-alcohol level. The court will only deal with misdemeanor offenders. Under Montana law, people are not charged with a felony until their fourth drunken driving offense.

The four-phase program may last 12 to 18 months for individuals. The court will include judicially monitored treatment programs and supervision. The goal is to provide incentives through the treatment for the offender not to re-offend once completing the program.

The goal is to get 15 offenders into the program in the first year. However, he said they will soon be able to handle as many as 50 people as the court gains momentum.

On the third conviction for DUI in Montana, an offender will be sentenced to between 30 days and 1 year in jail and a fine of between $1,000 and $5,000. Like a first and second offense, if one of the passengers in the vehicle at the time of the offense is under the age of 16 the penalties increase.

At least 48 hours of the sentence must be served consecutively and may not be served under home arrest. The first 10 days of the sentence may not be suspended – and the rest of the sentence may be suspended for up to 1 year pending successful completion of a chemical dependency treatment program.

A suspended sentence is where a person has been sentenced to a certain period of time, but is not required to serve all of it. For example, a person could be sentenced to 5 days, but only be required to serve 1 in jail. In this case, the other 4 days would be suspended. Often, the suspended sentence is conditioned on something happening (or not happening). If you fail to abide by the terms of your suspended sentence, the rest of it will be imposed. So in the example above, you would be required to serve all 5 days.

Paul Sullivan, Esq.

Paul is a partner at Measure, Sampsel, Sullivan & O'Brien, P.C. in Kalispell, MT. He is an ivy-league educated, DUI Lawyer specializing in defending Montanans accused of Driving Under the Influence of Drugs or Alcohol. He represents clients across Montana in misdemeanor and felony charges, and license hearings.
Call 752-6373 today for a free initial consultation.